A. W. v. Neb. Med. Ctr.
| Decision Date | 05 May 2020 |
| Docket Number | 8:19-CV-342 |
| Parties | A. W., Plaintiff, v. NEBRASKA MEDICAL CENTER, a Nebraska non-profit corporation; and M.D. MARK DIETRICH, Defendants. |
| Court | U.S. District Court — District of Nebraska |
This case comes before the Court on defendant Mark Dietrich's Motion to Strike, Filing 37, and defendant Nebraska Medical Center's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), Filing 40. Dietrich requests an order under Fed. R. Civ. P. 12(f) striking certain language from A.W.'s Second Amended Complaint on the basis it is redundant, immaterial, impertinent, and/or scandalous. Filing 38 at 1. Nebraska Medical Center ("NMC") seeks an order dismissing A.W.'s claims for vicarious liability for tortious conduct and fraudulent concealment. Filing 41 at 1-2. NMC does not move to dismiss A.W.'s claim for negligent supervision against it.
For the reasons stated herein, the Court denies Dietrich's Motion to Strike and grants NMC's Motion to Dismiss. Thus, A.W.'s remaining claims are for battery and fraudulent concealment against Dietrich and for negligent supervision against NMC.
As was set forth in this Court's prior Memoranda and Orders, Filing 27 at 2-3; Filing 28 at 1-3, Plaintiff, A.W., brings claims against Defendants based on inappropriate sexual contact by Dietrich during a surgical procedure A.W. underwent at NMC's facility. NMC is a Nebraska non-profit domestic corporation that employed Mark Dietrich, a board-certified orthopedic surgeon and Nebraska-licensed physician holding privileges at NMC. Filing 31 at 1. Dietrich was additionally an assistant professor at NMC's Department of Orthopedic Surgery and Rehabilitation. Filing 31 at 2. The operative complaint also quotes from an NMC document describing Dietrich's credentials at length:
Mark E. Dietrich is an assistant professor in the Department of Orthopaedic Surgery and Rehabilitation. He received his law degree from the University of Nebraska College of Law in 1994, and his medical degree from the University of Nebraska College of Medicine in 2001. Dr. Dietrich completed a five-year residency program at the University of Nebraska/Creighton University Health Foundation in 2006, followed by an orthopaedic sports medicine fellowship at Minnesota Sports Medicine in Minneapolis in 2007. He is a board-certified orthopaedic surgeon. He is a member of the American Academy of Orthopaedic Surgeons, American Orthopaedic Society for Sports Medicine, Nebraska Orthopaedic Society, Nebraska Medical Association and Nebraska State Bar Association.
In early 2017, the Omaha Police Department began investigating Dietrich for groping and fondling the breasts and vaginas of anesthetized patients. Filing 31 at 2-3. A.W. alleges NMC was aware of the allegations against Dietrich and "knew" Dietrich "was also a sexual predator." Filing 31 at 2. Despite this knowledge, NMC did not suspend Dietrich's privileges, restrict him from performing surgery, or prevent him from having access to anesthetized patients. Filing 31 at 3.
On November 15, 2017, A.W., a twenty-year-old female resident of Florida, traveled to Omaha and was examined by Dietrich in relation to a prior knee injury. Filing 31 at 4. Based on that initial consult, Dietrich recommended "anterior cruciate ligament reconstruction with a bone patellar tendon bone graft," and A.W. agreed and scheduled the surgery for December 1, 2017, at an NMC facility. Filing 31 at 4. Because NMC was aware of the allegations against Dietrich, NMC assigned surgical staff to observe Dietrich during A.W.'s surgery and report any inappropriate behavior. Filing 31 at 4.
On December 1, 2017, in an NMC operating room with NMC staff members, Dietrich performed knee surgery on A.W. while she was anesthetized. Filing 31 at 4-5. Someone presentduring the surgery reported that, while A.W. was under anesthesia, Dietrich "removed a glove and fondled her vagina." Filing 31 at 5. He did so for "personal gratification and thrill-seeking." Filing 31 at 6. This was not recorded in A.W.'s chart, and NMC did not inform her of this incident until October 2018. Filing 31 at 5.
As a result of Dietrich and NMC's actions or omissions, A.W. felt shocked, betrayed, mortified, and emotionally distressed. Filing 31 at 6. A.W. filed suit against Dietrich and NMC on August 8, 2019. Filing 1. Before serving summonses, A.W. filed an Amended Complaint, adding a new damages allegation. Filing 6 at 8. After being served, both NMC and Dietrich filed Motions to Dismiss. Filing 15; Filing 17. As is relevant here, the Court dismissed A.W.'s claims for professional negligence, failure to obtain informed consent, and punitive damages against Dietrich and dismissed her claims against NMC for tortious conduct based on vicarious liability, failure to obtain informed consent, and punitive damages. Filing 27 at 10; Filing 28 at 10. The Court granted A.W. leave to amend her complaint with respect to all but the punitive damages claim. Filing 27 at 9-10; Filing 28 at 9.
A.W. filed her Second Amended Complaint on February 18, 2020. Filing 31. It included nearly identical factual allegations to her First Amended Complaint, compare Filing 6 at 1-6, with Filing 31 at 1-6. In contrast to the previous complaint, the Second Amended Complaint enumerated specific causes of action: battery against Dietrich, negligent supervision and vicarious liability against NMC, and fraudulent concealment against both defendants. Filing 31 at 8-11. With respect to A.W.'s claim regarding NMC's vicarious liability, she added new allegations specifying that Dietrich had privileges as a member of NMC's medical staff, Dietrich "targeted A.W. as a patient in NMC's facility, [Dietrich] gained access to A.W. within NMC's facility," and NMC benefited financially from having Dietrich in its employ. Filing 31 at 8.
Dietrich filed a Motion to Strike pursuant to Fed. R. Civ. P. 12(f). Filing 37. He seeks to strike terminology from the Second Amended Complaint describing him as a "sexual predator" who engaged in "groping," "fondling," "preying," or "sexual assault" for "personal gratification" as redundant, immaterial, impertinent, and/or scandalous. Filing 38 at 3-4. NMC filed a Motion to Dismiss A.W.'s claims based on informed consent and fraudulent concealment against it, arguing both fail to state a claim. Filing 40; Filing 41 at 4-12.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In order to satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). In analyzing a motion to dismiss, the Court must "accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, but [is] not bound to accept as true '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' or legal conclusions couched as factual allegations." McDonough v. Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015) (citations omitted) (quoting Ashcroft, 556 U.S. at 678).
Federal Rule of Civil Procedure 12(f) permits a Court to strike certain material from a pleading. Fed. R. Civ. P. 12(f). "Because the rule is stated in the permissive . . . it has always beenunderstood that the district court enjoys 'liberal discretion' thereunder." Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (quoting Thor Corp. v. Automatic Washer Co., 91 F. Supp. 829, 832 (D.C. Iowa 1950)).
Dietrich seeks to strike language from A.W.'s Complaint on the basis that it is irrelevant and inflammatory. Filing 37. In particular, Dietrich takes issue with A.W.'s description his of actions, claiming her use of phrases like "sexual predator," "groping," "fondling," "preying," and "touching the sexual and private parts of anesthetized patients for purposes of personal gratification" should be stricken because they "explicit[ly] employ language contained in the Nebraska criminal statutes realting ot [sic] sexual assault." Filing 38 at 3. Dietrich argues "[t]hese terms will cause the trier of fact to draw unwarranted inferences at trial and create confusion of the issues with any potential jury pool, eliciting a criminal connotation in a tort claim where the sole remedy is compensatory money damages." Filing 38 at 4. He also takes issue with A.W. quoting from NMC's biographic description of him, claiming this "lengthy narrative is immaterial." Filing 38 at 5.
Rule 12(f) permits the Court to strike certain material from a pleading as follows:
"Judges enjoy liberal discretion to strike pleadings under Rule 12(f)." BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) (citing Nationwide Ins. Co. v. Cent. Mo.Elec. Coop., Inc., 278 F.3d 742, 748 (8th Cir. 2001)). "Striking a party's pleading, however, is an extreme and disfavored measure." Id. (citing Stanbury Law Firm, 221 F.3d at 1063).
The Court fails to see how any of the complained-of material meets the high bar set forth by Fed. R....
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